John Beaumont, Kt., C.J.
1. This is an application in revision against the conviction of the accused under Rule 56(4) of the Defence of India Rule's, 1939, by the First Class Sub-Divisional Magistrate of Ahmednagar. A revision application against the conviction was dismissed by the Sessions Judge.
2. Rule 56 of the Defence of India Rules provides, so far as material, that the Provincial Government may, for the purpose of securing the defence of British India, the public safety, the maintenance of public order or the efficient prosecution of the War, by general or special order, prohibit, restrict or impose conditions upon, the holding or taking part in public processions, meetings or assemblies. Sub-clause (4) is the penal provision. It is to be noticed that the order can restrict the holding or taking part in public processions, meetings or assemblies; it has nothing to do with private processions, meetings or assemblies.
3. On August 9, 1942, the Government of Bombay promulgated an order, S.D.V./102, reciting that the Government of Bombay considered it necessary, for the purpose of securing the public safety, the maintenance of public order and the efficient prosecution of the War, to make the following order. The order which is expressed to be made under Rule 56 is divided into two paragraphs. Paragraph (a) provides :
No public procession, meeting or assembly shall be held in any place in the Province of Bombay, except with the previous permission in writing of the District Magistrate of the district concerned, or the Commissioner of Police, Bombay, as the case may be.
Paragraph (b) provides :
No person shall take part in any procession, meeting or assembly in respect of which such permission has not been obtained.
Now it seems to me perfectly plain that Sub-clause (b) although it omits the word 'public' or 'such' before the word 'procession', nevertheless applies only to public processions, meetings or assemblies. This is plain from the reference to the obtaining of 'such' permission, permission only being necessary in the case of public processions, meetings or assemblies; moreover, as I have pointed out, if the order prohibited the holding of private processions, meetings or assemblies, it would be outside the scope of the rule.
4. The learned Magistrate, misled by the omission of the word 'public' or 'such' in Sub-clause (b), framed a charge against the accused of taking part in an assembly for which the District Magistrate's permission had not been taken. The charge, I think, was bad. It should have been a charge of taking part in a public assembly; and the point to which the Court should have directed its mind is whether the assembly in question in this case was a public assembly. The learned Magistrate expressed the view that the order prohibited all assemblies, and, as the accused had been a member of an assembly, he was necessarily guilty. The learned Sessions Judge in revision, seeing the difficulty of holding that all meetings were banned, introduced a qualification on the order, which, to my mind, is wholly inadmissible. His view was that in construing the order the Court must have regard to the preamble to Rule 56, and must construe the order as only prohibiting such meetings as are contrary to the public safety, maintenance of public order and efficient prosecution of the war. The preamble to Rule 56 is only relevant on the question of the validity of an order issued under it. If it could be proved, that the purpose of Government in framing the order was not such as is indicated in the rule, then the order would be bad; but once the order has been promulgated, its construction must depend upon the language in which it is framed, and the preamble to Rule 56 has nothing to do with the construction of the order. The only limitation on the nature of the assembly covered by the order is to be found in the word 'public'. We are not concerned in this case with processions or meetings, but only with an assembly, and the question to which the lower Courts should have directed their minds is whether the assembly of which the accused was a member was a public assembly.
5. Now, it is not, I think, easy to say exactly what constitutes a public assembly. The expression 'public assembly' seems to be used in contra-distinction to private assembly, and in my view an assembly, to be a public assembly, must be qualified both as to its purpose, and as to its composition. To my mind a public assembly is one the object of which is the furtherance of some public purpose, and the constitution of which involves the admission of members of the public, whether conditionally or unconditionally. If admission of the public be all that is required to constitute a public assembly, and the object of the assembly is irrelevant, it would follow that a crowd watching a cricket match on an open maidan or attending horse-races would be a public assembly, which in my view it is not. But to constitute a public assembly the public must, I think, have access to it, though it may be in limited numbers or on payment. If the assembly is confined to the members of a particular body or association, it would generally not be a public assembly. Of course, the question whether any particular assembly or meeting is a public assembly or meeting must be determined on the facts of each case. The place where the assembly meets may have some relevance, since it is obvious that a meeting which takes place in a public hall is more likely to be a public meeting than one which takes place in a private house.
6. In the present case the findings are that the accused took part in a meeting of a society, called the Rashtriya Seva Dal, the main purpose of which is to indulge in gymnastic exercises. The learned trial Magistrate finds that the assembly consisted of about 150 persons, all of whom, I gather, were members of this body, and that they sang Vandemataram and saluted the Congress-flag, which might give some political flavour to the meeting. But in my opinion the findings cannot be said to establish that the public had any access to the assembly, or that the object of the assembly was to further some public purpose. Both the lower Courts have directed their minds to the wrong point, and the charge, framed against the accused, is of doing something which is not an offence, and in these circumstances I think the conviction in this case cannot stand.
7. We must, therefore, allow the application, set aside the conviction of the applicant and direct that the fine imposed upon him, if paid, be refunded.
8. I agree.